Treading On Barron Ground

Last week Senate Majority Leader Harry Reid (D-Nev.) filed cloture on David J. Barron to the United States Court of Appeals for the First Circuit.  Ever since the Senate Democrats eradicated the democratic process when it came to nominations from the President it has been difficult to stop the parade of bad judges that have been nominated by President Obama.  So when a nominee comes along that garners strong bipartisan opposition, as Mr. Barron does, it is an unusual thing.  When you consider it is the nominees position on the matter of life that has caused this bipartisan opposition (from the ACLU to Rand Paul) it is even more unusual.

At question is the nominee’s belief of when it is okay to take a human life.   To the ACLU and for some Senators the question is the killing of U.S. citizens in war time.  Senator Rand Paul (R-Ky.) laid out the argument:


I’ve read the Barron memos concerning the legal justification for killing an American citizen overseas without a trial or legal representation. While the president forbids me from discussing what is in the memos, I can tell you what is not in the memos.


There is no valid legal precedent to justify the killing of an American citizen not engaged in combat. In fact, one can surmise as much because the legal question at hand has never been adjudicated.


While the pro-life Senator’s arguments are in opposition to how the federal government treats adult citizens the opinions expressed by Senator Paul can and should be applied to the unborn’s rights as well.  Mr. Barron though views that the courts should use judicial activism to change laws to fit a pro-abortion on demand view:


“The dilemma of politics is particularly acute when the Court interprets in an activist posture. Goldstein [a liberal ally] never endorses judicial activism explicitly, but judging from his apparent approval of Roe [abortion decision] … he does not mean his call for clarity and candor to obstruct such progressive decision making. Unfortunately, clarity, candor, and activism cannot co-exist without raising serious democratic objections, for some constitutional principles demand flouting popular will. Thus, given the costs of foregoing activism, candor and clarity seem a preferable choice for sacrifice.”[i]

Mr. Barron’s beliefs fits into his philosophy that the Constitution is a living “dynamic document.”  Writing for the Harvard Law and Policy Review, Barron said: 


“It has long been a precept of the progressive view that the Constitution is not frozen ….  Its provisions are, in important respects, simply too open-ended and forward looking for that not to be the case, and the deficiencies of a pure originalism are now too well known. The Constitution is, as Richard Fallon recently put it, a dynamic document. But for that very reason, the task for progressive constitutionalism, as I see it, is to engage with the substance of constitutional interpretation in light of new understandings of the progressive tradition itself ….”[ii]


Mr. Barron’s actions reflect a man who would abuse the traditional role of a judge being an umpire and above the fray.  Instead he clearly states he would use the power to further his own personal, rather liberal, agenda.

[i] David J. Barron, Book Note, Democracy and Dishonesty, 106 Harv. L. Rev. 792, footnote 15 (1993).

[ii] David J. Barron, “What’s Wrong With Conservative Constitutionalism?  Two Styles of Progressive Constitutional Critique and the Choice They Present” Harv. Law & Policy Rev. Online (July 2006) (internal citations omitted) (emphasis added); available at:


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